CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 In the common law system, the rules are often deficient in relation to effective due process, even though recent constitutions have strengthened these protections. In Botswana, Lesotho, Malawi, Mauritius, Seychelles, Tanzania, and Zimbabwe the legislation contains “ouster clauses” stating that the minister is not required to give reasons for any decision authorised by the law and/or that the decision of the minister cannot be reviewed in court.346 Vetting procedures determining eligibility for nationality identity documents are thus entirely within the decision of the executive branch. Constitutional provisions may in principle override these exclusions: for example, in the case of Malawi, the ouster clause violates a prohibition in the 1994 Constitution on arbitrary deprivation or denial of citizenship;347 while in Zimbabwe the 2013 Constitution provides for all to have the right to administrative justice and a fair hearing.348 However, they provide support for a degree of executive discretion that undermines the rule of law and is not in conformity with human rights standards. Both the African Commission and the African Court on Human and Peoples’ Rights have issued judgments in several cases indicating that such exclusions are in violation of the African Charter (see heading International and African law). In South Africa and Zambia, by contrast, the law specifically provides for review of decisions by the High Court.349 One area of nationality administration where executive discretion is especially pronounced is in case of naturalisation, where a person who fulfils all the criteria established by the law may nonetheless be refused grant of citizenship, effectively on any arbitrary ground. Some states, including Comoros and Namibia, specify that no legal challenge can be made to a denial of naturalisation.350 In DRC, an initial decision to reject an application for naturalisation can be challenged before the Supreme Court, but then becomes a political decision: if admitted, a decree is then approved by the Council of Ministers, and the naturalisation does not enter into effect until voted on by the National Assembly (following the Belgian model).351 Even if no specific provision states that naturalisation is absolutely discretionary, this is the case in practice, based on the discretionary language of the substantive provisions (for example, that the minister ‘may’ grant naturalisation). Zambia’s 2016 Citizenship Act provides one of the few exceptions to this rule among the common law states, requiring reasons to be given in writing if application for registration as a citizen is rejected.352 Botswana, Eswatini, and Zambia establish an administrative procedure by which the decision to grant or deprive citizenship is made by a citizenship board or committee appointed by the relevant minister or the 346 Botswana Citizenship Act 1998, sec. 22; Lesotho Citizenship Order 1971 sec. 26; Malawi Citizenship Act 1966 sec. 29; Mauritius Citizenship Act 1968 sec. 17; Seychelles Citizenship Act 1994 sec. 14; Tanzania Citizenship Act 1995 sec. 23; Zimbabwe Citizenship Act 1984 sec. 16. 347 Constitution of Malawi 1994, art. 47. 348 Constitution of Zimbabwe 2012, arts. 68 and 69. 349 South Africa Citizenship Act 1995, sec. 25; Citizenship of Zambia Act 2016, sec. 30. 350 In the case of Comoros, a decision not to accept an application for naturalisation request must be reasoned, but the final decision is subject to no appeal: Loi No.79-12 du 12 décembre 1979 portant Code de la nationalité comorienne, art.72. The Namibian Citizenship Act, sec. 5(8), provides: “The grant of a certificate of naturalisation shall, subject to the provisions of subsection (7), be in the absolute discretion of the Minister and he or she may, without assigning any reason, grant or refuse such certificate as he or she deems most conducive to the public good, and no appeal shall lie from the Minister's decision.” 351 Loi No.04/024 du 12 novembre 2004 relative à la nationalité congolaise, arts. 36 and 38. 352 Citizenship of Zambia Act 2016, sec. 21(3); Citizenship of Zambia Regulations 2017, reg. 6(3). UNHCR / December, 2020 82